Diaz v. State

• Court: Supreme Court of Delaware
• Decided: June 15, 2023
• Docket: 42, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

CARMELO DIAZ, § § No. 42, 2023 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID Nos. K1708014930 STATE OF DELAWARE, § K1609018643 § K1902014670 Appellee. § K1709005673 §

Submitted: May 11, 2023 Decided: June 15, 2023

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

Upon consideration of the appellant’s opening brief, the appellee’s motion to

affirm, and the record below, it appears to the Court that:

(1) The appellant, Carmelo Diaz, filed this appeal from his sentencing for

a violation of probation (“VOP”). The State has moved to affirm the judgment below

on the ground that it is manifest on the face of Diaz’s opening brief that his appeal

is without merit. We agree and affirm.

(2) On November 15, 2017, Diaz resolved charges in three cases by

pleading guilty to three counts of third-degree burglary. For each count, the Superior

Court sentenced Diaz, effective August 21, 2017, to imprisonment for three years,

suspended for one year of Level III probation with GPS monitoring, with probation to run concurrently. Diaz was adjudicated to be in violation of probation in these

cases in 2017, 2018, and 2019.

(3) On April 3, 2019, Diaz pleaded guilty to a charge of third-offense

driving under the influence. As later modified, the Superior Court sentenced Diaz,

effective February 24, 2019, to two years of imprisonment, suspended after ninety

days for one year of a Level III intensive outpatient treatment program. In January

2020, February 2021, and February 2022, Diaz was adjudicated to be in violation of

probation.

(4) On November 18, 2022, a probation officer filed a VOP report alleging

that Diaz had failed to report to probation as required on four dates in October and

November 2022; that Diaz had urine screens in September and October 2022 that

showed positive results for alcohol and oxycodone, which he was prohibited from

possessing or consuming; and that he had been discharged from Aftercare for

noncompliance. At a VOP hearing on January 6, 2023, Diaz admitted that he was

in violation of the terms of his probation. As to sentencing, he stated that he

struggled to maintain a job while trying to comply with probation supervision and

requested that the court sentence him to time served followed by Level I probation

so that he could pay his fines and restitution without further significant monitoring

by probation. The Superior Court found Diaz in violation of probation and sentenced

him as follows: for third-degree burglary, to three years of imprisonment, suspended

2 after successful completion of a program in DOC’s Discretion for six months of

Level IV DOC Discretion, suspended after successful completion for six months of

Level IV Work Release, followed by one year of Level III probation; for third-degree

burglary, to one year and eleven months, suspended for six months of Level IV Work

Release, followed by one year of Level III probation; for the third-offense DUI, to

one year and two months of imprisonment, suspended for one year of Level III

probation; and for third-degree burglary, to two years, five months, and eight days

of imprisonment, suspended for six months of Level IV Work Release, followed by

one year of Level III probation.

(5) On appeal from his January 6, 2023 VOP sentence, Diaz contends that

the Superior Court abused its discretion by imposing Level III probation for

“technical violations” and that he cannot comply with Level III supervision while

maintaining employment and meeting his financial obligations. We find no

reversible error. “It is well-established that appellate review of sentences is

extremely limited.”1 Our review of a sentence generally ends upon a determination

that the sentence is within the statutory limits prescribed by the legislature. 2 If the

sentence falls within the statutory limits, “we consider only whether it is based on

factual predicates which are false, impermissible, or lack minimal reliability, judicial

1 Kurzmann v. State, 903 A.2d 702, 714 (Del. 2006). 2 Mayes v. State, 604 A.2d 839, 842 (Del. 1992). 3 vindictiveness or bias, or a closed mind.”3 When sentencing a defendant for a VOP,

the trial court may impose any period of incarceration up to and including the

balance of the Level V time remaining to be served on the original sentence. 4 Diaz

does not contend that the sentence imposed exceeded the Level V time remaining on

his sentence. The Superior Court acted within its discretion when sentencing Diaz

for his admitted violation of probation.

NOW, THEREFORE, IT IS ORDERED that the Motion to Affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura Justice

3 Kurzmann, 903 A.2d at 714. 4 11 Del. C. § 4334(c). 4